Smitty at the Other McCain suggests a return to first principles, and a re-examination of what the institution was for in the first place. We have just completed such an examination here, in our autumn debate on polygamy, so it is not necessary to do it again; if you want to revisit the discussion, though, Elise has kindly gathered all of my posts and her own into a category.

I do want to say something about the bias in the law, though, because I find this particular bias to be an interesting one. I think it represents a real challenge to our idea that equality before the law is a goal towards which we should strive: this seems to me to be a clear case in which equality before the law would be wrong.

First, though, we need to narrow the field a bit. There are so many different ways in which men and women are treated differently by the law in family matters that it would be wise to choose a couple of clear-cut cases, with minimal ambiguity, so that we don't end up lost in anecdotes. I can think of two examples that are paradigms of unequal treatment by the law, and that illuminate the problem well.

The first is the law of termination of parental responsibility. The woman has a legal right to abortion in this country that is essentially unfettered; she may thus terminate her duties at will, and for any reason, up until the moment of birth (and even afterwards, in the case of partial-birth abortion). The man has no right to demand the termination of the baby; whereas the patria in ancient Rome made the call on exposure and infanticide, in America it is the mother.

HB 5882 [CAPA] actually makes it a crime for a man to "change or attempt to change an existing housing or cohabitation arrangement" with a pregnant significant other, to "file or attempt to file for a divorce" from his pregnant wife, or to "withdraw or attempt to withdraw financial support" from a woman who he has been supporting, if it is determined that the man is doing these things to try to pressure the woman to terminate her pregnancy.

What would we get out of equality before the law in the first case? Something rather worse than what we have now: a situation in which fathers were either empowered to demand the death of a child they didn't want (as mothers already are); or, failing that, the right to abandon responsibility for a child that they sired, leaving the woman financially alone to raise it. One thing seemed to agree on with Aquinas' philosophy of matrimony, which we encountered in our discussion of marriage and polygamy, is that the principal end of marriage is procreation -- not merely in the sense of having a child, but seeing that the child is raised to achieve its capacity to fulfill a role as a member of, and defender of, our civilization. Equality before this law would only further damage that principal end.

The first case is a case in which equality before the law is wrong because the law itself is wrong. Asking for an equal right to perform an injustice is to ask for more injustice. That is against reason.

It might be possible to ask for equality in the other direction without violating reason -- i.e., by limiting access to abortion. However, at least so far the Supreme Court has refused to entertain almost any such limits. Unless the Court changes its mind, or we change the Constitution, we do not have that option. We have only the option of asking for more injustice, or accepting inequality before the law. Of these options, inequality before the law is the wiser, and the morally better, choice.

What do we get out of equality before the law in the second case? Should we accept a situation in which a man is free to try to force a woman to kill her child by starvation or poverty? It's the same problem we had in the first case. Of course it should not be legal to abandon your child or its mother. Since our country has abandoned the requirement of marriage, naturally this is going to intrude upon those who go about siring children without bothering to marry.

Yet can we ask for equality in the other direction here? Can we morally state that a woman is not free to leave a man who has gotten her pregnant? Of course not: especially if he is furious about the business of the child. It may put her in terrible danger, and the baby as well. Her freedom to leave is necessary.

Thus we have a situation in this case in which inequality before the law is actually necessary for justice. If justice is -- as Aristotle put it -- to treat relevantly similar cases similarly, the sex divide presents us with a very relevant difference. Inequality before the law is thus necessary for a just result.

But let us return to the image above. True justice between men and women lies not the in the law, but in chivalry: in that willful, loving sacrifice of self for the beloved other. This, at least, is a symmetrical relationship: both the man and the woman must be ready to give of themselves for the other for it to flourish. When it does, however, it is the glory of the world, and the joy of life.

So, is it right to speak of marriage to the young man? Surely so, if the boy has the guts for the big game: for a love that speaks to thunder, and answers the principal end. And if he doesn't, well, what's the point of living at all? A man dies soon enough. Why wrap anyone else up in it, if you don't have what it takes to play for the real thing?

50 comments:

I think all your points are excellent. I'll have to hunt down a good source for that Chivalry poster. My daughter and her husband would respond to the image. Both Tolkien fans, they envision their romance with chivalric symbols. Their friends, referring to a popular game, came to refer to them as Link & Zelda. They even had a Link & Zelda cake topper.

As for me, I buy it totally as an ideal. Unfortunately I've fallen so far short in sacrifices for my true love during the 33 years we've been married, both times, that I would hesitate kneeling before her while she wielded that sword. Better safe than sorry ;-)

"Yet can we ask for equality in the other direction here? Can we morally state that a woman is not free to leave a man who has gotten her pregnant?"

OK, a quibble here. Those aren't parallel circumstances. To make it parallel, you'd have to say a woman must not leave a man who's gotten her pregnant, if her purpose in threatening to leave is to get him to consent to an abortion (supposing his consent were required). Or maybe to put it another way, a woman must hang around long enough to bear the child if the father wants to keep it, even though she doesn't want to keep it, and perhaps even to raise it and otherwise contribute to its support.

As far as the objection goes that forcing the woman to remain might endanger her or the baby, the same goes for criminalizing a man's attempt to leave when his motive is to extort an abortion out of his unwilling partner. Seems to me the marriage is dead the instant the father demands an abortion, or the mother either. A disagreement on that subject isn't likely to be bridged. I've seen darn few marriages survive even an abortion that both parents fervently desired. What speaks more loudly about the couple's union than their decision to abort its issue? I don't say that entirely to be judgmental, despite my objection to abortion. I say it as a simple observation. No matter what the parents' ostensible philosophy is on this subject, there is a primal message involved that (in my experience at least) proves extremely hard to ignore or get past. I've seen a marriage or relationship survive such circumstances exactly once in my life, so I know it can be done, but it is very, very difficult.

If we accept your version of the parallel, how does the equality-before-the-law issue play out with that scenario? Clearly the SCOTUS wouldn't accept a law mandating that a woman remain in place until she bears the child that the father wanted; but I can't think why such a law would be out of order with the child's interests and the father's, though it demands a significant disability from the mother. It's your example, though, so: how do you see the justice aspects playing out?

Oh, RCL, I'm so sorry. What a painful story. I'm glad you found each other again. What awful things we do to ourselves and each other, believing what our culture says about abortion being no big deal.

Grim, I didn't mean to suggest it ever could be practical to force the wife to stay. I was just so horrified by the idea of a husband pressuring his wife for an abortion, and trying to imagine how she could bring herself to enlist the law to make him stay. Not to be blind about her possibly desperate need for support, but it's hard enough when two people agree on the decision to abort. It's much harder when one parent wants an abortion and the other reluctantly goes along out of love or respect for the other's wishes. And it's (to me) perfectly unimaginable when one parent doesn't want an abortion but the other pushes the agenda with some kind of force.

Even when I was young and foolish and believed abortion was A-OK and every woman's right, the minute a man demanded to terminate my pregnancy, it would have been all over for me with him. Totally inconsistent philosophically, but I'm talking about the gut. All over. It wouldn't have been a matter of choice, just recognition of an accomplished emotional truth.

They say it's the rare, strong marriage that can survive the death of a child even by accident or illness. Abortion takes that trouble to a new level, but often in an under-the-radar way given our state of denial.

As for the equity and justice side of it, there can be no equality on the subject of the disparate impact of a pregnancy. In some areas of child rearing and support, yes, but especially as long as women are the ones whose bodies are pregnant and as long as they control the decision whether to abort, they're not similarly situated with men and can't be no matter what the law says. The most the law can do is try to alleviate the difference in the burden: in women's case, the greater physical burden, and in men's case, the lack of choice.

I don't disagree with anything you say, Tex; I was just trying to understand how that would play out. You and I seem to agree that equality before the law is not a principle that can survive here, because (to continue to enlist Aristotle) the relevant differences would make equal treatment unjust.

I do think a law of the type proposed could be just, certainly in the case of not removing material support; that's no more than moving up the start of child support to conception instead of birth, which is coherent with the idea that the child is a child from conception. Now, I'm not sure about making him stay in the physical sense -- but I think it could be just to refuse to let him throw her out. It wouldn't make much sense to drum up the law to stop him from moving if he wants to leave her alone in the house, provided that he continues to support his child (which, during her pregnancy, entails supporting her basic physical needs as well).

I don't see much room for half measures here, as a general rule. If he (or she--I'll stick with "he" for exposition, but I think in my narrow context, the genders are interchangeable) doesn't want to be part of the child's life, then neither should he be forced to be, nor allowed to be. If he wants out, he's out all the way in the parenting side, including no visitation rights: the monetary support should still be required.

Of course there are lots of individual circumstances that will fit into lots of loci in what's really a spectrum from willing parent to unwilling to participate. And these middle grounds should be allowed. But this is so variable, I don't see a role for a hard law. It's an area where lawyers and courts can help work out a tailored solution (which itself must evolve over time, and expire when the child is become adult and able to make his own choices in the matter), but I don't see how politicians in any other branch of government can play a role, no matter their motives.

Another thought occurs to me: for what equality are we looking? And for whom? The original question was framed as equality of law, but that tends to look for equal outcomes, which as you've noted is, in this context, counterproductive. We might better reframe the question as equal justice, and for the child. The parents--or just the sire and dam, as the case may be--would seem to have less of an equality of "rights" in a conflict with what's best, in some sense, for the child--regardless of whether the child begins at conception, at viability outside the womb, or at birth. It seems to me that once the two have created the child, whether by design or accident, the child's claim to justice must supersede the parents'--or either parent's--in any conflict between the two.

T99 begins to get at this with her recognition that the circumstances of man and woman in this context are irretrievably different, and so equality under the law creates unequal justice. The situational disparity with the child is even more extreme.

Not asking for equal outcomes is one thing; but what's at issue here is the question of whether it's even reasonable to ask for equal standards. In these cases, equality before the law among all citizens would lead to some pretty clear cases of injustice. Men and women should be held to different standards in these kinds of cases, precisely because of the ways in which men and women are different.

...what's at issue here is the question of whether it's even reasonable to ask for equal standards.

That's my point. It seems to me that laws and standards are outcome oriented--for the law or standard. Where the conditions are substantially the same, this is a fine goal. But where the conditions are not the same, then equal outcomes are inappropriate.

We need to look for equal justice, or justice for the child first, if a choice must be made, since the child cannot speak effectively for himself.

Laws and standards seem useless here, except to provide a predicable framework for achieving equal justice, or justice for the child first.

It is, Grim, the fact that when women who abuse the inequality of the law in those cases are condemned weakly, if they are condemned at all, if they are not vigorously defended that disinclines young men towards marriage.

You have posited instances in your scenarios which speak to the injustice which would be visited on women and children; however, in each of those cases your scenario has set up a case where the woman is the blameless party, and the man is the bad actor.

Now, I challenge you - reverse those positions in those scenarios. Or, if you prefer, a good faith expenditure of a dozen minutes or so will find you real life scenarios through your favorite search engine to provide your examples.

As for myself, I can find such instances in my own circle of acquaintance. A former co-worker who had struggled with infertility issues to find that his then wife had, for years, been stringing him along with "having a child" while taking birth control, and aborting two children.

The "Oopsie, I forgot to take my pill for 90 days straight while telling you that I don't like condoms" trap pregnancy is so common as to be a trope.

We have had, and have, several high profile cases of fathers trying to regain custody of children who were given up for adoption without their knowledge or consent.

Let's add paternity fraud, and the whole host of permutations there. Google it. I have a student who, just two years ago, found out that the man he called "Dad" for 14 years was not, in fact, Dad after all. A very sunny freshman is now and angry gothic Junior who calls his mother "Lying Slut" and has no interest in marriage, nor much use for women.

"Dad" is paying child support and gets to "visit" with the boy he raised as his own a couple of times a month. The biological father is off scot-free; with the full blessing of the law. Mom has the house, the car, and child support, plus government aid, and the child - and still feels very much the victim; and cannot see that she had any role, let alone most the role, in damaging her son through her lies and deception. And as "only the teacher" my hands are tied in so many ways.

You may very well argue that such things are rare - indeed, this is but one case in the whole school. But - It's not the first that I know of, personally - just the first that blew up with me having a front row seat.

How many of these "rare" cases do we need? The testimony is eloquent, not only to every boy in the school, but the girls as well - they see the mother not only paying no price, but in several tangible ways profitting.

How do you counter that? That is rhetorical - with 20 years in education, I can assure you that young people have a very finely tuned sense of fair/unfair; any perception of unequal treatment is one of the quickest ways to demotivate students and lose class control.

This matters, Grim, and every discussion in this vein misses these poits, and the very least of those points is them being told what an upstanding man his guy is being, an seeing lives in shambles. The latter speaks so loudly the former cannot be heard.

The larger points are two-fold. One is that these laws enable males to be punished for doing the right thing, and females to not only not suffer consequence, but to benefit from doing the wrong thing.

But the largest point is this:

"Well, of course that's wrong, but..."

That's as far as it goes.

After "but" you can insert a whole lot of things.

"we can't ask that girl to give up her future for a mistake, but we can take yours away."

"we are going to tell you to keep it in your pants, but we are going to choose not to tell her to keep her skirt down."

"she might have circumstances we don't know of, but your circumstances are irrelevant."

Etcetera. Etcetera. Ad infinitum. Ad nauseum.

Add into this one of the Great Morgan K. Freeberg's Laws "Anything bad ever said about a man is just a thing, but anything bad said about a woman is an attack on all women who have ever lived." Men like yourself won't TOUCH this thrid rail for fear of the harpies descnding with cries of "Chauvanist!" and "Misogynist!;" and they won't police their own, so it is not done.

You - I - We are expected to raise our sons to be gentlemen, or be dismissed from the company of men; yet they cannot be arsed to raise their daughters to be ladies, or be dismissed from the company of women - and heaven help you if you or I correct them.

And that, my friend, is the real inequality so often complained of in places like "Alpha Game" and in Masculinist circles.

As for not touching the third rail, you haven't been around here long enough -- whoever you are -- if you think that might be the case.

I am outright ready to condemn abortion as a moral wrong in nearly every case, including the one you posit; the only exception in which it might be morally correct (and indeed, may be morally required) is the case in which a failure to abort would lead to the death of both mother and child. In that case, reason shows that the death of one innocent -- though tragic -- is better than the deaths of two.

This is blessed by the medieval doctrine of double effect, the test of which is this: imagine that, by miracle, the harm done did not occur. Are you still happy with the results? If the aborted child happened to survive (along with the mother), we surely would be happy; and therefore the test is satisfied.

As for trapping men into paternity with lies, well, I hold that children are a gift from God; however much I might condemn deceit, the right path is the path of love -- which the child, your child, deserves whatever his mother may have done.

Which leaves me with your last example, that of paternity fraud. You seem to be falling into your own trap: "Anything bad ever said about a man is just a thing, but anything bad said about a woman is an attack on all women who have ever lived."

That cuts both ways. If you leave your junior in high school with the impression that his mother's lies are a condemnation against all women, you are doing him no favors and much harm. Men need women -- need them as more than what your 'Alpha Game' types understand them to be. To get to that takes courage, and sometimes the courageous are badly wounded -- I have been myself, at times. Yet courage remains a virtue, and the only road to glory.

Well, perhaps; but let's not be unkind to a guest by not taking his argument seriously. You have often spoken to the subject with passion: do so now. How would you raise a young woman, with regard to these matters?

With regard to the double standards that Unknown refers to? I would raise her to scorn them, as something on a par with affirmative action.

The mother of a child is not a poor little girl who ought to be indulged while she has her difficult path smoothed for her. If the father turns out to be a jerk, she's the one who exposed her baby to having a jerk as a father.

But I often feel that these disputes tend to devolve into a contest between the inadvertent mother and the inadvertent father over which parent is most to blame. I'm more interested in how one or preferably both of them are going to make sure the baby is taken care of. Once that problem is taken care of, if they have remaining time and energy, they can go back to mutual recrimination and complaints of unfairness.

So in other words, if the sex was voluntary, I'm not that interested in complaints from either the man or the woman about who is most to blame for the inconvenient results. Of course it would be disgusting to lie to someone about birth control, but any man who's not willing to put aside his resentment of his lying partner in favor of the innocent baby ought to have taken care of the birth control for himself. Just as a woman has a responsibility to pick a sexual partner who's not a jerk, so as not to saddle a baby with a jerk father, so has a man got the same responsibility not to saddle his own child with a jerk mother.

Allow me to be concise, then, at the risk of sounding terse, and eliminate distractive examples and illustrations:

First: First, for however noble the reasons as may be, family law is inequitable according to sex.

Second, whether intended or not, the end result of this is two-fold:

(A) Men may behave in an exemplary fashion in such goings on, and even though the vary vast and overwhelming majority of men are no deadbeats, neglectful, or abusive monsters, they are treated as such pre-emptively, and often wind up on the short end of the stick based upon potential actions they have not actually committed.

(B) Likewise, women may behave in a reprehensible fashion, and when they do, they rarely, if ever, face legal consequence for their actions except in the most extreme, undeniable, and egregious cases; and likely as not are are excused, and often are rewarded for bad behavior

Stay your exceptions for a moment.

I submit to you that in all of this there is a 3rd party that is unmentioned except obliquely and abstractly: The children in such cases.

These children are in the middle of all this. It is here, and now, up close and personal, front row, fifty yard line box seats. If you really think that they do not see this - to be frank, you live in a dream world. Moreover, if you think that among these children who associate for 8 to 10 hours a day, or more, do not talk about their lives to each other, or observe each other, you are likewise in error. The child from the intact home has as close a view of a broken home as the child in it.

Further, this is during what is referred to as their "Formative Years." This is where lessons are learned that are not easily unlearned, and opinions formed which are not easily changed.

Even further, it is the nature of the young mind that the far future, and long-term consequences, are still an abstraction. This is not merely a function of perspective or experience, but is a function of the organic structure of the juvenile brain. "Twilight" and "World of Warcraft" and such are, in very real ways, more real to an adolescent than the notion of them being "old."

Likewise, their world is very narrow and limited. Their older siblings, attending college even a few counties away are often seen as well travelled and worldly.

In summary:

1) We wish to teach our children lessons in the long term, and with wide reaching societal consequences which are to them abstractions; and he examples we have for them of the long term rewards are very quiet and subtle.

2) In contrast, the lessons our (granted, broken and dysfunctional, but still it is our reality - the world as it is, not as we wish it to be) society teaches them vis-a-vis this issue, to wit, "Boys can do the right thing and be punished, girls can do the wrong thing and be rewarded" are very much reinforced by dramatic examples in the here and now.

The upshot of all of this is that while we wish to teach and for our children to learn lessons A, and B, and C - the cold and harsh world is instructing them in a very loud and dramatic fashion Lessons X, Y, and Z.

The very fact that we are having this discussion should be a splash of cold water to tell you which lessons they are learning.

I suppose that it is perfectly valid to say that the status quo is fine, or to adopt a fatalistic attitude of "What can you do?" And, likewise, "Soldier on" and "Make it work" and "Keep the faith" and "Our Cause is just and that will make it win" is an approach to it.

And as well, if one accepts the "progressive" notion, based from their premise that the "Beaver-Cleaver Nuclear Family" is both mythical and toxic , and the status quo is in such delicate balance tht any attempt to move this swing of the pendulum back is going to swing it to the result in women being chattel again - well, what can I say, then?

P.S.: As for me "leaving my junior," I teach his history class for 5 periods of fifty minutes per week. IF we have a full week, for nine months. I also have 176 other students. And my own children.

While I have made good choices, I've also not had the luxury of being able to disassociate myself from "Not Our Kind Of People" and have learned a bit of humility that I've also had some luck, and instead of being judgmental have learned that in a lot of instances, There, But For The Grace Of God, Go I.

Our guy from the post doesn't HAVE to say to our young men "Don't get married." It's our boys who have already decided it's for suckers.

I hear - all the time - "I'm not getting married. I've seen what my (Father, brother, uncle) has gone through." My junior is 16 and wants a vasectomy so no woman cn do to him what he has seen his mother do to the Dad who raised him.

In 1996 - 16 years ago - I taught in Indianapolis. 8th grade.

We did a long term, semester, role playing game of "Life" to teach budgeting, and life planning. Without going into details, of 47 girls in the 8th grade classes, 19 of them wanted or argued for how much child support they would receive, not to mention assistance from agencies, as part of their life plan.

16 years ago. Those girls would be 29 or 30 today.

You should look on this and weep.

The question isn't how do we stop this - it's how do we fix this?

And to be honest, in my darker moments, it's "Can it be fixed?"

The barbarians aren't preparing to march. They are in the gates, torching the city.

It seems to me that the legal deck was stacked against women for a long time without crashing the marriage rates. Even accepting for the sake of argument that family law is now stacked against men, there may be some unpleasant results from that injustice, but I doubt they'll include a mass exodus from marriage on the part of men. If marriage rates fall off, there are a lot of other causes to look to.

Nevertheless, it does seem like a good idea for men who bitterly resent women to avoid marriage -- regardless of whether their resentment is well-founded.

Seems to me to be an apples and oranges comparison. But, by all means, continue to parrot the line of liberals like Robin Morgan (Also famous for her quote: "We can't destroy the inequities between men and women until we destroy marriage.") that anyone who objects to the status quo must be a misogynist and whiner.

I'm done trying to cat my pearls before swine and attempting any civility in the face of such dismissive snark. Marriage rates are down, divorce rates are up, poverty, unwed motherhood - the whole lot.

I wish I could lay blame for it against the people who lobbied, agitated for, and pursued social policies designed to do achieve the goals of Robin Morgan - and her ilk - outlined above; alas, and but unfortunately, it also lies with the cultural cowards who stood by and let them, in mute complicity, work their evil.

I'm sure in your retreat into your parochial ghettos and social enclaves you're able to insulate yourselves from the foibles of the hoi polloi who don't have the benefit of your smug moral superiority. Maybe even your children might. I wonder, though, as private schools and homeschooling is encroahed upon, if your grandchildren, or their children, will enjoy the same legacy you seem to wish to leave them.

Meh. What the heck. It's not like you're a Trade Unionist or something, is it, Rev. Niemöller?

We don't do private school here -- can't afford it, and really the same is true for homeschooling. One parent has to be full-time on that, and in this economy, good luck making that work.

The inequality of family law is a given. My argument is that equality before the law, in this case, is a false star. You're asking for something we shouldn't even want.

You hit on the real issue very late, though, which is divorce. The real problem with all of this isn't the unequal treatment of men and women -- men and women are different enough that equality would be injustice. The real issue is the ease of divorce.

Insofar as government welfare programs are behind it, though, be of good cheer. All that is about to come thundering down, for the simple reason that we can no longer afford it. The classes of people who live off government checks will soon be fighting among themselves for who gets the money; and welfare to families with children is going to lose. As a nation, we are structured both demographically and politically to send money from the young to the old, from the child-rearing to those past such burdens. Soon anyone young enough to have a child will have to cling to whomever they can, so we can pay for Social Security, Medicare, and pension plans.

Wrong, Grim. Please show me, IN MY OWN WORDS, where I ever advocated absolute equality under the law.

I deplore the fact that the law is applied in such a fashion where good men are punished when they do the right thing, and women who are bad actors can actually reap rewards under color of law for such bad actions. Under, of course, the false flag of "The Good of the Child." (Watch the last scene of "The Dead Zone" for my take on that.)

All that would entail would be to close the loopholes which allow abuses of the system and process. Some penalties and teeth for acting wrongly.

Unless, of course, depriving women of the ability to use their skirts as shields for wrongdoing is bitter and misogynist?

I'd be willing to wager if you actually punished such indisputably reprehensible acts such as custodial interference, tactical false accusations, and the like, you'd see a lot less of them.

For some reason though, it's terribly important to T99 for women to be able to be free to act in bad faith and remain free of legal consequence or any stigma.

I've been wrong about many things. I could be wrong about aspects of this as well. However, I assure you that you're reading T99 wrong if you think she's arguing that women should be free to do wrong without consequences. She is a strong advocate of just the opposite view.

I'm not familiar with "The Dead Zone." I'm guessing it's a TV show? We quit watching some time ago, just because it seemed like a waste of money. You'll have to tell me about the episode you reference.

"The Dead Zone" is a movie. In the end of the book - not the series - "Johnny Smith" feigns an assassination on the politician he foresees will start WW3 if elected to the presidency; the politician, in defense, picks up a child to use it for a human shield. While Johnny dies in the book and movie, this happens on national TV, and people see the would-be President for who he really is.

And what was I reading wrong? Was it the part that since long-dead women had a bad deal (Also not a whole story, but we'll let that slide.) it's fine and dandy to give currently living men a little vengeance, even though they weren't the ones cutting those dead ladies the "bad deal?" And it's okay to dismiss any objections, therefore. as bitter and resentful wimminz-hating?

Like Grim, I deplore easy divorce, and like Unknown, I'm discouraged by declines in marriage rates. I believe I account differently for the decline, however. I would put it down to birth control and the increased ability of single women to support themselves financially, via employment or welfare. I suppose I'd add some perverse incentives from various government policies. I might also blame a collapse in religious mores, but I'm guessing that the biological and economic changes led to the abandonment of the popular religion-based sanction against unmarried cohabitation rather than vice versa. Hard to say. Maybe it's a natural result of our being in the third generation or so of kids raised in divorce.

Whatever the reason, it's not working out well for society; the poverty statistics alone make me nostalgic for the days when it was a given that people shouldn't procreate until they married and shouldn't marry until they finished high school. I wish I could believe the problem could be solved by the relatively straightforward expedient of making family law tougher on women, but I'm just not persuaded of the connection. No doubt the perceived unfairness of the system of breaking up marriages gives pause to whoever believes that system to be stacked against them, but really -- are we going to restore marriage as an essential institution by ensuring that divorces proceed more equitably?

It's kind of a baby and bathwater scenario, methinks, to say that because complete equity cannot be achieved, that no attempts to move anything more that way need be taken. Likewise, because something won't solve a problem in toto, it does not follow that discarding it as having no utility at all follows. That's letting the perfect be the enemy of the good.

I deal with a lot of divorced fathers in my work. And I find the "bitter" and 'Woman hating" accusations against them to be cheap shots. I find anger, true - but for the most part it is anger from a man whose child support is paid, in full and then some, who finds his daughter needs new glasses when her mother has just bought a new car; or from fathers frustrated with a system going along with a vindictive ex-wife's attempts to relegate him to the status of a virtual uncle instead of an equal parent.

The issue is not custodial parents who behave; the issue is when a system that aids a custodial parent misbehaving in committing things which go beyond a rational inequity into the realm of injustice with a wink and a nod.

And worse, those injustices are demonstrating to a lot of guys outside of marriage that entering into marriage gives them no tangible stake in family.

To turn things the other way, a while back I had a student whose father had abandoned the family; and this is to say that he met his child support obligations in full, and even above and beyond. But he had just decided he didn't want to be arsed with being a father. Let alone the devastation of the girl, I had her mother weeping at times that her ex offered repeatedly to sign away parental rights if she met a man who would adopt the girl - but the young lady jut wanted her daddy. And she didn't want child support,she just wanted her ex to spend even so much as a weekend a month letting his little girl know he mattered to her as a daughter.

This is an ancedote, but it is illustrative that the court was unwilling to do anything truly effective towards this, the final bottom line being that a non-custodial father who sends his check in on time but is detached, is considered (in the eyes of the law) a more adequate parent than the one which struggles to do so, yet still fights to remain in his kid's lives.

Because this works the other way - short version: A father's presence is optional. I've seen it happen. A father gets a month behind on child support, zero tolerance, no excuses, and the court is johnny on the spot to do something about it; but visitation denied and it can be literally years before any action is taken.

And I won't even go into what happens in the rare instances where the mother is the non-custodial parent. She's frequently given a lot of slack to pay CS, especially if she has another child, and let her be denied visitation, and watch CFS descend.

This is more than just even irrational inequity, let alone rational; this is a public policy which says that a father headed household is a situation in need of remedy, but a father absent household is No Big Deal.

I don't think it matters that rectifying this isn't a magic bullet. This is not trivial. This is social engineering to make the nuclear family just one option among many, and maybe not even the most desirable option.

And if you want to test the truth of that, find you one of these social worker types and assert that the nuclear family is he first, best, indicator and option for raising healthy and well-adjusted children. Don't just take my word for it.

Well, I'm all for gender equity in divorce law. I'm just not persuaded by the argument that we need it because men are becoming discouraged about the unfairness of marriage, or otherwise irritable about the turning of the worm in recent decades. We need gender equity because it's a good idea to treat men and women justly. Where there are inescapable differences to address, they should be addressed, but there's no need to create differences out of jingoism for whichever gender happens to be riding highest in popular favor this decade.

I'd be willing to bet dollars to donuts that if you felt your investment in commitment and such in a marriage and family - or even a simple business contract - would leave you with a stake in it dependent solely on your partner's goodwill to guarantee your investment, but felt their investment was backed by law, you'd be disinclined to enter into it.

And I am equally as certain that if you felt your gender was the sole determinate of that disparate treatment, you'd be infuriated; moreso if any objection or counter-proposal you raised raised was met with ridiculous assertions that you were merely a man hating bitter woman.

That seems to be all you have, is name calling from a parochial and insulated position of privilege.

I don't think she's calling you names, and wouldn't permit it if I did; we have a comments policy here that is designed to admit of spirited attacks on ideas, but not on other commenters. I read her point about bitterness earlier was directed at your examples of young men who are, by your own account, embittered toward women and marriage.

A two-pronged attack can sometimes be defeated in detail. However, I think we are not as far apart on some points as I believed at first. You're saying that you aren't interested in absolute equality; T99 is saying that she's all for equality as far as it goes.

My own interest in the point is that it seems to be a case in which a principle we take as fundamental -- equality before the law -- probably would lead to actual injustices if it were adopted. Thus, it may be a case in which we should not strive for the principle. If you're not for "absolute" equality, then you and I may agree about this.

Sorting out just what changes ought to be made is another question. I'm willing to consider that some may be helpful, especially if there are specific proposals.

1) Women have the moral agency to be bad actors; it is evident in every field of human endeavor. To insist that in the area of relationships and/or family law they magically develop an overwhelming moral superiority based solely on their gender is absurd in the extreme.

2) Where bad action and bad faith is found, gender - or parenthood - should not be a shield for the consequences of that bad behavior.

3) It is one thing to base differences in law with the demonstrable innate and intrinsic differences between males and females. However, when (2) is demonstrated, basing the decisions on treatment of the offender on gender crosses a line into Bad Law, and should be rectified, and it is nether unreasonable, bitter. or misogynist to apply that if the offender is female.

In my youth, my view of marriage was much as you describe: deck stacked against me, my investment too dependent on a partner's goodwill, etc. It certainly gave me pause before I entered into it. That goes triple -- quadruple -- quintuple for child-bearing, which can be a scary proposition for anyone. You don't soon forget job interviews when prospective employers ask you frankly why they should bother trying you out when you're probably only going to quit and have children anyway. That kind of thing can inspire you to establish considerable financial independence before you're ready to take the plunge, knowing that if you don't earn money now you may never get the chance later. Of course, this was in the dark ages of the 70s. Employers may sometimes think like that now, but they would keep the thought private.

I don't doubt that many others hesitated as I did, and for similar reasons, on both sides of the gender divide. I simply think that most people get past this impediment to marriage, and that there are many other impediments to marriage today that are a lot more damaging.

I'm older now, and more inclined to see good reasons why both men and women find it difficult to make a leap of faith and trust each other in marriage. It's worked out well for me, though perhaps only because I didn't approach it conventionally; I skipped the part about financial dependence, for instance. I'm sure I'd be a better person if I could be more trusting in that regard, but so far it's proved impossible for my psyche. "If equal incomes cannot be, let the higher-earning partner be me," as Auden might say. At least I was trusting enough never to segregate income, not even income that I had the option to treat as separate under Texas's Byzantine community property law. Pretty much everything we have is in our joint names. I don't worry about him divorcing me and grabbing half -- but then both of us are very deeply committed to avoiding divorce, which helps. He also knows he would never have to worry about my divorcing him and treating him unfairly on the money front. My conscience, honed by feminist outrage over decades, wouldn't allow it.

1) Women have the moral agency to be bad actors; it is evident in every field of human endeavor. To insist that in the area of relationships and/or family law they magically develop an overwhelming moral superiority based solely on their gender is absurd in the extreme.

This is, to put it mildly, the mother of all straw men. Who has asserted that women can do no wrong?

What law asserts that? I have seen zero evidence in this discussion of such an assertion but would be happy to address one if offered.

2) Where bad action and bad faith is found, gender - or parenthood - should not be a shield for the consequences of that bad behavior.

Again, who or what is our unknown commenter arguing with here?

3) It is one thing to base differences in law with the demonstrable innate and intrinsic differences between males and females. However, when (2) is demonstrated, basing the decisions on treatment of the offender on gender crosses a line into Bad Law, and should be rectified, and it is nether unreasonable, bitter. or misogynist to apply that if the offender is female.

I think, actually, that this isn't intended as a straw man but a compromise position -- and it is, as you say, one we can all agree to accept.

It's a little unusual to see a hot philosophical debate on a blog yield a mutually acceptable compromise, so I can see how it might not be the first thing you'd think of! But that does appear to be what has happened.

I consent to the frame. Now, having done so, what does that mean for specific reforms? State laws are all over the board here, but what exactly ought we to change?

I think, actually, that this isn't intended as a straw man but a compromise position -- and it is, as you say, one we can all agree to accept.

If we all agreed to it from the get go, how is it a compromise position? What was given up (on either side)?

Literally every single post I have ever read on this topic (generally ones linked to by Instapundit) has been anecdotal but blissfully free of references to what the law actually says in the state in question.

I worked in a family law practice in California and did my internship in family law in SC: two states with diametrically opposed legal philosophies wrt to divorce. So my experience of family law disputes is based on a broad overview of cases (as opposed to the ubiquitous, "I know a fellow who..." or even "I know 3 men who...") in which men and women acted like jackasses in roughly equal proportions. And contra the cherry picking of anecdotes we are presented with so often, women lost out big time a LOT of the time. I saw it happen - frequently.

If you want to make an argument that will gain broad support, it needs to be backed up by something more than anecdotal horror stories with little or no detail and only one side presented. If we're doing anecdotes, I can cite scores of ones where women have been done wrong by the system, starting with the very first one I encountered as a married woman: my next door neighbor, whose husband was verbally and physically abusive, who was wealthy but rarely if ever paid his child support, who was so filled with rage that when he came to pick up the son, we could hear him screaming through the walls. As an 8 months pregnant wife, I used to go stand on their porch and ring the doorbell to let him know someone was watching and he wasn't going to get away with brutalizing his ex-wife.

And the courts took this jerk's side every.single.time.

IMO, if you're going to claim the law is biased, you need to make the argument as to WHY it is biased. Disparate impact is a crappy legal argument, and fuzzy "arguments" based on disparate impact absent specific legal arguments as to WHY the law must be changed are unimpressive and unpersuasive. You know me well enough to know that I've taken the side of many fathers who were unfairly treated by the courts over the years.

Your question: "exactly what ought we to change" is rarely addressed in terms of the law. Instead, we get outcome based arguments (i.e., people want the outcomes changed with no argument made as to the specific inequities in the law that lead to those outcomes) or even ANY evidence of the relative frequency of problems!

What I'm saying is that I'm disposed to listen and be sympathetic but if people want the laws changed they have to do better than ranting about sexual market value (impressive, that) or worse, adopting the tactics of radical feminists.

While reading up on this issue, I came across a couple of statistics which I immediately recognized as wrong, and both for the same reason, to wit:

1. A third of all births have the wrong father identified.

2. Only a third of custody cases are won by the mother.

The flaw in these (Lies, damnable lies, and) statistics is thus: In the first place, this is the subset of men who SEEK such tests because they have reason. In the second place, this is the subset of cases taken to court by men on their attorney's advice, because lawyers advise clients with losing cases to settle.

Want to take a guess at the actual numbers, when all is taken into account? Want to take a guess at the percentages of men correctly identified as fathers? Want to take a guess at the percentage of attorneys who advise fathers not to waste money and time in a court case, lest they make things worse?

I think I lost track of your point. Was it that the family law business is unfair to men? If so, what do you conclude from that? Does it bear in some way on the question that Grim was raising, which (if I understood him correctly) was that there's no use looking for equality of result when the players in the system are not equally situated to begin with?

I usually differ with Grim in my reluctance to acknowledge inherent and unavoidable inequality of circumstances between men and women. The one area where I can't quarrel with him in that regard is pregnancy, where biology imposes an inescapable inequality of burden. (I'm less inclined to assume that biology imposes an inescapable inequality of duties to the baby once born.)

That doesn't mean I think the courts should always rule in women's favor on the ground that the poor dears can get pregnant. If courts are routinely favoring women for no better reason than condescending paternalism, or PC fashion, I doubt you could possibly feel more outrage than I. I'm not sure that's been established here, but I'd be interested in more dispassionate information on the subject.

I haven't much personal experience with custody disputes. My brother-in-law fought for and received primary custody of his four children when his wife insisted on a divorce; he lined up her family in his support. That's the only case I've ever followed closely; divorces I've heard about at greater distance usually resulted in the mother getting primary custody.

As for how many wives cuckold their husbands, I have no idea. How many men father children by women other than their wives? Have we got any convincing statistics on either form of procreative infidelity? If that form of infidelity is rampant, what should we conclude about its relevance to bias in the law? Should it affect child-support obligations? Property divisions? If I were a judge hearing a divorce case, no doubt I'd be exasperated by evidence of cuckoldry on the part of the wife or extramarital child-siring on the part of the husband, and I might even be inclined to favor the injured party in the custody or property disputes. Would that be right?

In the meantime, I wonder if you could possibly moderate your tone. The disconnect between what anyone here is actually saying and what you're objecting to (sometimes in rather emotional or personal terms) can be confusing and jarring.

Yes, please, let's moderate the tone. I do insist on avoiding personal attacks against other commenters. I won't allow them against you, and by the same token, Hall rules require me to delete them when they appear in your own remarks as well.

Cassandra:

It can't be true that literally every post you've read has blissfully avoided the actual law, because this one cites the law on "safe havens" for abandoning unwanted children. Those show an actual bias, though a mild one, toward the interests of the woman (i.e., four of the 49 states that permit it only permit the mother to decide to turn over the child; no states only permit the father to decide to turn over a child).

I agree with your request for specific laws that ought to be changed, however. It would be helpful if we could focus on those specifics. Do you have any that you might suggest as a starting point?

It can't be true that literally every post you've read has blissfully avoided the actual law, because this one cites the law on "safe havens" for abandoning unwanted children.

If by "safe havens" you mean laws dealing with the ability of a parent to abandon a child, that is not divorce law nor does it involve custody disputes (except perhaps tangentally). If a mother doesn't want her child but the father does, there is no need to abandon it, is there?

My "this topic" was meant to address the broader topic of inequity in divorce laws. This is the first time I had ever heard of any gender disparity in who can abandon a child, so I can't really address that topic at all. But my gut feel is that that comes under the heading of "relinquishment of parental rights" rather than divorce or custody.

On the face of it, a gender bias in such laws strikes me as questionable, though I can easily see why such a law might "favor" a woman:

1. We're dealing with a case where a mother has decided (for whatever reason) she can't or won't care for her infant.

2. It is rarely (so rarely as to be relevant) going to be the case that an infant is handed over to the father after birth, with the mother completely out of the picture. The default circumstance is that it is assumed the mother is responsible for the child. The father less so, though that is changing.

3. On first blush, it seems reasonable to require a signed declaration of willingness to relinquish parental rights from BOTH the mother and father (and indeed most adoption laws DO require this). But keep in mind that we're not talking about an adoption here, but a situation where - for whatever reasons - a mother is so desperate or negligent that she abandons her baby rather than seeking legal adoption.

4. In such a case, the law is trying to ensure that such a desperate woman doesn't so something far worse - i.e., smother her child. So in this case, strict legal equity between the father and mother is LESS important than the best interest of a helpless child (i.e., providing an avenue that ensures the child will be cared for properly).

It strikes me, though I have often noted it when family courts have been grossly unfair to men, that the reason for gender disparities in family law is rarely some misguided desire to "let women off the hook", but rather that the best interest of a helpless child is paramount and FAR more important than treating mothers and fathers (whose biological and societal circumstances are themselves irrevocably unequal) as though those critical differences did not exist.

This is a point I believe you have made yourself many times, Grim.

Biology is, in many ways, profoundly "unfair" to women. It would be great if we could just have sex and walk away from the consequences with no trouble, expense, risk. But even before the law gets involved, that is not possible for women the way it is for men.

Now the law has sought to hold men more accountable for their sexual behavior. I would argue that their record of success is mixed. In some cases I think it is actively UNFAIR to men now.

I get impatient when this complex question is treated as solely a matter of unfairness between men and women as though the child was just beanbag. Sex is fun, but it also has the power to create life. No one knows better than I how bad decisions in that area can change a person's life - and often several persons' lives - forever.

I agree with your request for specific laws that ought to be changed, however. It would be helpful if we could focus on those specifics. Do you have any that you might suggest as a starting point?

Yes. I categorically disagree with forcing a man who can prove he is not the biological father of a child to pay 18 years of child support.

I am leery of criminalizing marital or post-marital disputes between couples unless of course proof of fraud can be shown. The problem is that like rape, a lot of marital disputes are "he said, she said" issues that are poorly suited to criminal penalties.

I am for eliminating alimony for both sexes except in cases where one spouse or the other was the full time caretaker of children. In such cases I think a limited period of rehabilitative alimony is not out of line. Having been a FT homemaker and mother for 18 years prevented me from getting a degree and compiling the kind of job experience that makes a person employable, so it seems fair that men or women who contribute to the marriage by providing FT child care have contributed economically to the marriage at considerable cost to their ability to provide for themselves.

By the same token, biology is unfair to those men who genuinely want their children, if the mother chooses not to cooperate. The institution of marriage is, in part, a compromise designed to protect both of them. The bargain is supposed to be that the mother promises not to bear children by anyone else and to raise the children of the couple in a home that includes the father; the father in turn doesn't sire children elsewhere (I'm speaking of ideal marriage here, not common practice in some cultures at some times), and supports the wife and children materially. Such a marriage, entered into in good faith and not put asunder, traditionally met the needs of the ordinary father as well as the ordinary mother.

We've changed big parts of those background assumptions, and are struggling to adjust the institution accordingly, with limited success to date. Divorce used to be rare; when it happened, whichever party decided to leave was generally severed from the children. The advent of no-fault divorce left courts with the decision where to place the children. For a long, long time, child-rearing responsibilities were so rigidly assigned to wives that it scarcely occurred to anyone to consider custody for the father. We started out with limited custody for fathers on weekends and holidays and moved on from there to arrangements more like 50/50, especially for older children. Some men, like my brother-in-law, actually get full custody. For that matter, some men, like at least two acquaintances of mine, stay home to care for the children while their wives continue to work full-time -- but it's rare.

Similarly for property division, it used to be vanishingly rare for the women to have any property or earning prospects worth considering, especially if the marriage had produced children. As that changed, courts gradually began to consider alternatives, with the usual lag time when a tradition this strong and important is evolving into something new.

As for infant safe-haven laws, I agree with Cassandra. The law is a blunt instrument, in this case designed to protect infants, with only a passing concern for the happiness of the parents. I'd like to see a mechanism for the father to be able to prove paternity if he learns of the infant's abandonment. It's a tricky situation; you have to consider where he's been all this time. Did the mother sneak out one morning, have the baby, and abandon it before he noticed? This is what Cass and I mean when we talk about inherent differences arising out of the fact that both parents have sex but only one gets pregnant. The consequences of doing this outside marriage can hardly be made equal to both partners in all ways, though they can be equalized in a few.

By the same token, biology is unfair to those men who genuinely want their children, if the mother chooses not to cooperate.

Agreed.

Divorce used to be rare; when it happened, whichever party decided to leave was generally severed from the children.

Actually, until the mid 1800s, custody was almost always awarded to the father. The legal standard changed to default to the mother unless unfitness could be proved. In the mid 20th century, the laws of most states changed again to a "best parent" standard.

This article provides a good overview of changes in custody laws over the years.

The law is a blunt instrument, in this case designed to protect infants, with only a passing concern for the happiness of the parents. I'd like to see a mechanism for the father to be able to prove paternity if he learns of the infant's abandonment.

Me too. If evidence of paternity can be used to force fathers to support their children (*sigh*) then certainly it should be equally admissible in establishing their paternal *rights*.

Aside from the fact that as far as incivility goes, I'd include implications that a man who is going to be married 28 years come October is somehow bitter about his marriage and/or should avoid it, or shril and bad-faith misrepresentations of a statement of clarification as argumentation by someone not party to it...Well, your blog, your regulars, your favorites to play.

That said there's a lot of attention paid to trees while not seeing forests going on.

For foundation, I've taught since 1989, 7 years in an inner city, 5 in a suburban, and the rest split between two more rural, county school systems. While I can't say that I have a lot of experience with shildless divorce, I have seen my share and a few other people's hare of children fom both unmarried in the first place and broken homes.

Without going into painful breakdown, I will first report an observation that children from homes with both natural parents are by far and away the highest performers and best adjusted children, with the fewest behavioral and emotional problems, as well as the fewest incidences of abuse.

The very vast and very overwhelming majority of children from homes which are not a traditional nuclear family are from homes with a single mother, or primary maternal custody. It has not been my obervation from thousands of students over 23 years that any shift here has been dramatic.

Factoring out parents who have obvious problems, most women seem fairly satisfied with their situation vis-a-vis family court, and most fathers have spoken of feeling disenfrachied and powerless, relegated to a secondary role.

23 years, thousnds of children nd families during that time. No, I do not have spredsheets and breakdowns; and I guess you certainly can dismiss that as merely ancedotal if you wish, but I would say that would be intellectually dishonest. This does not say "Why" but it is an observation of the end result. In the final analysis, you can say that there is something very wrong with either men or women, or you can observe that there is something systematic going on; however you detail it, it would fall into those categories.

I tend to favor the latter as a causative explanation. That observed behaviors of disengagement for men, and the maternal gatekeeping in women seem to be a result of systems, not driving them.

When I ask "Whom doe this benefit, and what does it serve?" I come up with a few high level obsrvations.

First, by way of foundation, I will observe that mainstream feminism is not about women. Show me a mainstream feminist, and 99 times out of a hundred, I will show you a doctrinaire not liberal but avowed leftist, who I would argue is running "feminism" as a false flag operation; I think I need only ask how President William J. Clinton, (R - AK) would have been treated by feminists with regard to his affairs, serial harassment and accusations of rape and assault to assess the truth of that. The "radical" feminists of the past have become he sages, celebrities, and elder stateswomen of the modern feminist movement; and the trite "dictionary definitions" of feminism today have about as much honesty as "all we want is a little lebensraum."

As a second foundation, I do not believe I have to break out the crayolas when I say that leftists, progressives, have been trying to undermine the traditional nuclear family, and are actively hostile to it, for several reasons I think I need not belabor.

So, instead of the pithy "This is the result of feminist agitprop on the family law system" what is more complete would be to say "Female radical leftists, in an effort to weaken the traditional nuclear fmily, have, under color of 'the good of women' lobbied for and implemented via legal nickel and diming, a series of policies designed to restructure the family by attacking the presence of fathers in the family as the hinge point. And further, where such attempts have failed, they have appealed to a sense of "don't attack women, let the girl win, protect women" in implementation of those policies, even when the implementation produces an unfair outcome."

The fact that this also produces a "let's you and him fight" with women and men is not a bug, but a feature.

Further, I think tht there has been a particularly insidious environment set up in family law. A woman going "to the wall" for custody of her children and securing support is seen as heroic by and large. She's the mama lion, protecting her cubs. She is the subject of the "Lifetime channel" movie of the week for her struggle.

Reverse the genders, and even were the particulars laudble, a male doing the same thing to "the mother of his children" would be seen in a far, far, different light, and painted so, in popular culture. And it is this grand narrative that gets reflected over and over when push comes to shove in the family court system, and produces default assumptions and judgments even absent evidences, and are reflected in the observable disparate outcomes.